They have argued that the CPIA does not apply, that the objects seized cannot be shown to be Pre-Columbian or Colonial, that it is not possible to determine whether Peru is the source country, that federal prosecutors violated due process, that federal attorneys brought the case to the wrong court, and that the items seized by CBP weren't even banned cultural property.
The claimant’s lawyers tried to convince the Miami federal court that the existence of the New Mexico case clearly revealed that a criminal investigation was underway. But the judge in Miami would not stop the forfeiture cases. The court even denied the claimant’s motion to dismiss the matters outright, not just delay them.
I agree with the United States that the information sought is relevant to its claims …. It is beside the point whether the government already has some evidence to prove its claims. There is no limit on the quantum of evidence that the government may amass—within the rules—to make its case as strong as possible. See Fed. R. Civ. P. 26(b)(1). I find that [the conservator’s] records and knowledge are reasonably calculated to lead to the discovery of evidence that is admissible and relevant to the elements that the government must prove ….
The United States … argues that the information sought pursuant to the subpoena is relevant to the elements that it must prove…. The government's aim is not merely to identify the intermediary. Rather, the government's aim is to identify the intermediary and, more importantly, to secure his/her testimony as an "eyewitness to acts of the conspiracy and the persons involved in it, as would be the person who was to transport the textile from Miami to New Mexico[;] that information could be critical to the government's case." [Doc. 9] at 4.
Claimant argues that "by engaging in discovery and offering evidence in support of his interest in the seized objects, he will be forced to incriminate himself in violation of his Fifth Amendment rights." (D.E. 74 at 2). The Government has not indicted Claimant and further states that no actual prosecution or criminal investigation is in progress.
The mere existence of parallel criminal and civil proceedings does not compel a stay of the civil proceeding.
Under the circumstances presented here, the Court finds that a stay is not warranted. Claimant has submitted no evidence that his invocation of the privilege against self-incrimination would compel an adverse judgment against him. . . . If "special circumstances" arise that Claimant believes warrants a stay during the course of litigation, then Claimant may re-file his motion.
Here, the artifacts were stashed in Claimant’s luggage. CBP officers located the artifacts in Claimant’s luggage only after conducting a secondary examination. When questioned about the artifacts, Claimant made false statements regarding how he came to possess the artifacts, his purpose for bringing the artifacts into the United States, and the individuals to whom he intended to deliver the artifacts. Additionally, Plaintiff alleges that the introduction of the artifacts into the United States was a violation of Peruvian law. Based on these facts set forth in the Second Complaint, the Court finds that there is probable cause to believe that Claimant clandestinely introduced the artifacts into the United States contrary to law.